Petitioner
Ellis Monk seeks attorney's fees pursuant to the Equal
Access to Justice Act, 28 U.S.C. § 2412, for time spent
appealing a denial of social security benefits. (DE 23.) The
Commissioner argues that counsel billed an unreasonable
amount of time for a relatively simple case and did not show
he is entitled to an enhanced hourly rate of $190. The
Commissioner further argues that legal assistant time must be
reduced to time spent doing work traditionally handled by
attorneys. For the reasons below, the petition is granted,
and Monk is awarded attorney's fees in the amount of $7,
790.00.

DISCUSSION

Monk
appealed to this Court from an Administrative Law Judge's
denial of his claim for Supplemental Security Income in 2013.
Monk argued that the ALJ committed numerous errors,
including: (1) failing to explain how he weighed the opinions
of a special education teacher who regularly interacted with
Monk compared to the opinions of non-examining state agency
consultants; (2) failing to account for functional
limitations related to Monk's speech impediment; (3)
failing to properly apply the regulatory special technique to
ascertain the severity of the functionally limiting effects
of Monk's autism; (4) failing to identify evidence
supporting the limitations included in the ALJ's
assessment of Monk's residual functional capacity; and
(5) improperly assessing Monk's credibility. (DE 15 at
9-23.) Instead of fighting the appeal, the Commissioner
joined Monk in filing an Agreed Motion for Remand that
requested reversal of the ALJ's decision with remand for
further consideration of the application. (DE 20.) I granted
the motion and remanded the matter on May 5, 2016. (DE 21.)

In the
pending motion, Monk requests EAJA fees totaling $7, 315.00,
comprised of 37.6 attorney hours at $190 per hour and 1.8
legal assistant hours at $95 per hour. (DE 23 at 4.) In his
reply brief, Monk moved for an additional fee of $475.00 for
2.5 hours of attorney time spent on that brief. The total
request is thus for $7, 790.00.

Attorney's
fees may be awarded if the government's prelitigation
conduct or its litigation position lacked substantial
justification. Cunningham v. Barnhart, 440 F.3d 862,
864 (7th Cir. 2006); Golembiewski v. Barnhart, 382
F.3d 721, 724 (7th Cir. 2004). The Commissioner concedes that
Monk is entitled to recover attorney's fees but makes
several arguments for reducing the number of attorney and
paralegal hours entitled to compensation and the enhanced
hourly rate proposed by Monk's attorneys.

Total
Hours Billed

First,
the Commissioner argues that it was unreasonable for
Monk's attorneys to bill 37.6 hours because the record
contains “less than 50 pages of substantive
records” and the issues in the case are routine. (DE 24
at 2-3.) In the Commissioner's view, it was excessive for
Monk's attorneys to spend 9.1 hours reviewing the record
and drafting a statement of facts and 2.3 hours revising and
citechecking the opening brief, and they should have been
able to prepare the entire case in 29.6 hours or less.

I
disagree. To begin with, a 400-page administrative record is
not short. See Bryan v. Astrue, No. 08-c-5472, 2010
WL 438384, *2 (N.D. Ill. 2010) (characterizing a 403-page
administrative record as “rather large”);
Palmer v. Barnhart, 227 F.Supp.2d 975, 978 (N.D.
Ill. 2002) (describing a 459-page record as “rather
voluminous”). In addition, while some documents in the
administrative record clearly had no real bearing on the
appeal, Monk's attorneys had to sift through everything
to separate the wheat from the chaff. In addition and as
documented in the itemized time sheet, Monk's legal team
had to thoroughly review not just his medical records, but
also more than 50 pages of school evaluations and testing
results, the ALJ's 20-page opinion, and the 50 pages of
hearing transcripts. (See DE 23-3 at 1.)

Second,
although the Commissioner asserts that the issues raised in
this case were routine and counsel could have reviewed the
record and drafted Monk's opening brief in significantly
less time, she has identified nothing in the brief that could
have been eliminated, and I see nothing superfluous on the
itemized time report or in Monk's opening brief. In
addition, and as has been noted by numerous courts in this
circuit, “most social security cases do not present
particularly complex legal issues, but that does not mean
that providing a thorough exegesis of the record, pointing
out various pieces of evidence that the administrative law
judge overlooked or misrepresented, and explaining why those
oversights are material to the outcome does not take
time.” Martinez v. Astrue, No. 2:10-cv-370,
2012 WL 1563907, at *6 (N.D. Ind. Apr. 30, 2012) (internal
quotation marks and citation omitted). Monk's brief was
25 pages long and made five different arguments for remand,
any one of which could have resulted-and did result-in
remand. Further, the 37.6 hours that Monk's attorneys
spent reviewing the record and drafting the opening brief is
on par with the time that other courts in this circuit have
found reasonably expended during the initial stage of a
social security appeal. See, e.g., Garcia v. Colvin,
No. 1:11-cv-165, 2013 WL 1343662, at *2 (N.D. Ind. Apr. 3,
2013) (awarding fees for 37.75 hours spent on the record,
researching, and writing a 25-page opening brief); Burke
v. Astrue, No. 08-c-50136, 2010 WL 1337461, at *3 (N.D.
Ill. Mar.31, 2010) (awarding fees for 34.4 hours spent
reviewing a transcript, researching, and writing a 13-page,
1.5 spaced opening brief raising five issues).

Under
these circumstances, any reduction in time would be arbitrary
and beyond my authority. See Smith v. Great Am. Rests.,
Inc., 969 F.2d 430, 439 (7th Cir.1992) (“[T]he
district court may not arbitrarily reduce the number of hours
requested; if it reduces hours it should provide a
‘concise but clear explanation.'”) (internal
citation omitted). The 37.6 hours Monk's attorneys spent
on his case were reasonably expended.

Enhanced
Hourly Rate

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Next,
the Commissioner argues that plaintiff&#39;s counsel should
not receive an enhanced rate of $190 per hour based on the
national CPI but instead should be limited to an enhanced
rate based on the Midwest Urban CPI, or $184 per hour.
Although statutory rate for social security appeals is $125
per hour, courts may award an increased hourly rate based
upon the cost of living if a fee higher than the statutory
rate is justified. Sprinkle v. Colvin, 777 F.3d 421,
423 (7th Cir. 2015). Regardless of whether the national CPI
or the regional CPI is used, the claimant “must produce
evidence that ...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.